Mwanjira & another v Ngovi (Legal Representatives of the Estate of Omar Rajimbo) & 7 others (Environment and Land Case 188 of 2021) [2026] KEELC 948 (KLR)
The bottom line
#A Kenyan court reinstated a dismissed land suit because the parties were present at court but misdirected by officials, protecting their right to be heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the dismissal of the Plaintiffs' suit on 22nd July 2025 was procedurally proper under the provision of Order 12 of the Civil Procedure Rules, 2010
- 2.Whether sufficient cause was demonstrated to warrant reinstatement of the suit under Order 12 Rule 7 of the Civil Procedure Rules, 2010
- 3.Whether the Plaintiffs' constitutional rights under Articles 25(c), 40, 48 and 50(1) of the Constitution of Kenya were infringed
- 4.Whether the allegations of perjury against the 1st Defendant warrant referral for criminal investigation
- 5.Who bears the Costs of the Notice of Motion application dated 23rd July, 2025
Key legal issues
#Procedural propriety of the dismissal under Order 12
The dismissal was procedurally irregular: the Plaintiffs were present within the court precincts but misdirected by court officials to wait in a shaded area, and the suit was not properly called out outside the courtroom as required by Order 12 Rule 1.
Order 12 Rule 1 requires that a suit be called on for hearing outside the court before dismissal for non-attendance. The requirement is a procedural safeguard to ensure parties present within the precincts are not unfairly prejudiced. In the virtual-hearing era its application is contextual and purposive. The Plaintiffs' consistent affidavit evidence that they arrived by 8:30 a.m., were directed to a shaded area by a court official and were never called, coupled with the court official's misdirection, meant the safeguard was not observed.
Sufficient cause under Order 12 Rule 7
Sufficient cause was demonstrated; the circumstances constituted excusable mistake and inadvertence warranting reinstatement.
Applying Shah v Mbogo and Philip Chemwolo v Augustine Kubende, blunders and excusable mistakes should not bar a litigant from being heard on the merits. The Plaintiffs were present at the precincts, misdirected by officials, and their counsel arrived later; their affidavits consistently narrated that they waited to be called while other litigants were called by name. Denying reinstatement where litigants were present but misdirected would defeat the overriding objective under Sections 1A and 1B of the Civil Procedure Act.
Infringement of constitutional rights
The dismissal infringed the Plaintiffs' rights under Articles 25(c), 40, 48 and 50(1) — fair trial, access to justice and protection of property.
Article 25(c) makes the right to a fair trial non-derogable; Article 50(1) guarantees a fair and public hearing; Article 48 obligates the State to ensure access to justice; Article 40 protects property rights. Where litigants were present within the precincts but misdirected by officials, dismissal without hearing risked undermining substantive rights. The claim concerned family property allegedly sold without authority, so denying a hearing would amount to depriving them of property without due process. Courts must lean towards substantive justice rather than technical dismissal.
Perjury allegations against the 1st Defendant
The allegations are noted but do not warrant referral by the Court within the present application; the Plaintiffs may lodge a formal complaint with the DCI.
Perjury is an offence under Section 108 of the Penal Code carrying seven years' imprisonment. However, determination of perjury requires an intensive criminal process including investigation and trial, which cannot be conclusively adjudicated within a civil application. Perjury proceedings are distinct from civil disputes and require independent prosecutorial action. The Court's role was confined to determining whether sufficient cause existed to reinstate the suit, though the record remains available to investigative authorities.
Costs of the application
Costs of the application to be in the cause, abiding the outcome of the reinstated suit.
Although costs follow the event under Section 27(1) of the Civil Procedure Act, costs are discretionary and must be exercised judiciously to achieve fairness. The dismissal was occasioned by procedural misdirection rather than deliberate indolence by the Plaintiffs, and the Defendants had not demonstrated prejudice justifying saddling the Plaintiffs with costs.
Legal principles established
#- In virtual hearings, the equivalent of calling out a matter outside the court is the announcement of the case on the virtual platform with parties expected to be present in the virtual waiting room at the appointed time, though this is an area requiring further deliberation
- The discretion to set aside a dismissal is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist a party who has deliberately obstructed or delayed the course of justice
- Presence of litigants within the court precincts who are misdirected by court officials constitutes excusable mistake amounting to sufficient cause for reinstatement under Order 12 Rule 7
- Perjury allegations cannot be conclusively determined in civil proceedings; they must be channelled through the criminal justice system
Court orders
#- 1.The Notice of Motion application dated 23rd July 2025 is allowed; the dismissal orders made on 22nd July 2025 are set aside and the Plaintiffs' suit is reinstated for hearing on the merits
- 2.A declaration that the dismissal was procedurally irregular under Order 12 of the Civil Procedure Rules as the Plaintiffs were present within the precincts of the Court but misdirected by Court officials
- 3.A finding that sufficient cause was demonstrated under Order 12 Rule 7 to warrant reinstatement, constituting excusable mistake and inadvertence
- 4.A finding that the dismissal infringed the Plaintiffs' constitutional rights under Articles 25(c), 40, 48 and 50(1)
- 5.Allegations of perjury against the 1st Defendant are noted but do not warrant referral by the Court for criminal investigation; the Plaintiffs are at liberty to lodge a formal complaint with the Directorate of Criminal Investigations
- 6.The matter to proceed to hearing on 15th October, preferably through physical means (date mis-typed in the order as '15th October, 2010')
- 7.Costs of the Notice of Motion application dated 23rd July 2025 to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25(c), 40, 48 and 50(1) of the Constitution of Kenya; Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21; Order 12 Rules 1 and 7 of the Civil Procedure Rules, 2010
Relief refused
#Referral of alleged perjury by the 1st Defendant to the Directorate of Criminal Investigations
Determination of perjury requires an intensive criminal process including investigation and trial, which cannot be conclusively adjudicated within a civil application
Costs
Costs of the Notice of Motion application dated 23rd July 2025 shall be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
THAT the Notice of Motion application by the 1st and 2nd Defendants dated 23rd July, 2025 be and is hereby found to have merit and hence it be allowed, the dismissal orders made on 22nd July 2025 are hereby set aside, and the Plaintifis' suit is reinstated for hearing on the merits.
THAT the costs of the Notice of Motion application dated 23rd July 2025 shall be in the cause.
The Plaintifis' presence at the Court precincts, coupled with the misdirection by oficials, constituted excusable mistake within the meaning of Order 12 Rule 7 of the Civil Procedure Rules, 2010.
The Honourable Court therefore finds that the Plaintifis' constitutional rights under Articles 25(c), 40, 48, and 50(1) had been infringed by the dismissal of their suit without hearing.
Thus, the Court proceed to declines to make a referral order but note that the Plaintifis were at liberty to lodge a formal complaint with the Directorate of Criminal Investigations if they so wished.
Issues in the judgment
#The disposition misdescribes the applicants as 'the 1st and 2nd Defendants' whereas the application was by the 1st and 2nd Plaintiffs
The hearing date ordered is mis-typed as '15th October, 2010' which is inconsistent with the chronology (judgment dated 17th February 2026)
The court's own case number is never stated in the judgment; only the companion case, Kwale ELC Case No. 163 of 2021, is identified by number
The companion case is referred to inconsistently as both 'ELC Case No. 163 of 2025' and 'ELC Case No. 163 of 2021' within the same judgment
Costs provision is attributed to 'the Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21' though Section 27(1) is a provision of the Civil Procedure Act, not the Rules
Paragraph 8 refers to a Notice of Preliminary Objection dated 23rd July, 2025 to be disposed of by written submissions, but no preliminary objection is otherwise addressed or determined anywhere in the analysis
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanjira & another v Ngovi (Legal Representatives of the Estate of Omar Rajimbo) & 7 others (Environment and Land Case 188 of 2021) [2026] KEELC 948 (KLR)", Case Analysis (2026). Not stated in judgment (Kwale ELC suit; companion case was Kwale ELC Case No. 163 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/948/eng@2026-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.